Why did SCO depose Intel?

SCO WAS taken out behind the woodshed by Intel a few days ago in one of the more unfriendly court filings in a long and extremely unfriendly case. The 64K question is not what happened, that is more than adequately documented on Groklaw, the real question is why SCO, or its attorneys got so stupid.

The short story for those not reading along with PJ, Darl and the gang is this, SCO faced a discovery cutoff in late January, and by all accounts had little or no evidence as the curtains were being drawn. It was desperate for an extension to keep on fishing, or as some suggest, to keep the FUD cloud hanging over Linux. Either way, SCO wanted more time.

The way it shot for was to spring three surprise last minute requests for depositions along with requests for mountains of documents. They asked Oracle, Intel and The Open Group(TOG) for complex documents, witnesses, and the kitchen sink with between a day and two weeks' notice. They asked Oracle to produce such things as "Documents concerning the identification of all versions of all Oracle software products that Oracle certified for operation on any version of any UNIX-based operating system, including but not limited to UnixWare, OpenServer, AIX, HPUX, Irix, Dynix, and Linux, since January 1, 1995 "

Oracle was the lucky one - it got eight days to dig this stuff up and find experts on the topic, Intel got less than a day.

To make matters worse, the requests were 'defective' in the legal sense of the word. They had multiple, obvious, and significant errors in them, so bad a first year law student might be embarrassed at the effort. It did this not once, but three times, all with distinct and mostly different errors. It makes no sense on the surface.

One possible explanation is simple, to buy more time - SCO wanted the documents to be ignored. Legally, if you make an error like it did, the receiving party can just wad the request up, throw it in the trash, and go on with their life. Not being a lawyer, I don't know the threshold for what constitutes an error grievous enough to merit the circular file, but an educated guess would be somewhere north of a typo.

So, if you want to make them ignore it, you don't put in subtle errors, you put in huge whopping errors, and you put in lots of them. Make them blatant enough that you can't miss them even if you are freshly returning from lobotomy surgery, and to top it off, send them to the wrong addresses. SCO did just that, and so if this theory is correct, wanted to make these things so over the top bad that when the recipients were done laughing, the trash can was the only place they could end up.

The brilliant master plan was the requests would sink beneath the waves, and never be heard of again. SCO could then go to the Utah judge (none of the deposed-to-be were in Utah), and beg for an extension due to unnamed conspiracies, alien invasion, or whatever it's claiming today. As long as SCO didn't drag any of the three aforementioned parties into it, there would be no one to deny their version. Their version turned out to be that SCO had properly and timely served all three, and all three had simply not shown up for the deposition and had not responded in any way.

The problem with such a 'cunning plan to take over the world Pinky' was that Intel was responsible, as were Oracle and TOG. As one person described it to me, the job of a lawyer is to keep you from doing stupid things to yourself. Intel, being responsible, felt it had to respond to the subpoena even if it knew it was badly broken. It needed to file a response, to defend its good name after SCO told the judge in Utah that Intel and the others were properly and timely noticed and ignored the subpoenas.

So, SCO appear to have made a big gamble. As long as no one looked at the fine print, and no one spoke up, it stood a chance of succeeding. Intel put a Cheneyesque level of buckshot into that theory, and it hit the ground faster than a campaign donor. This was the worst-case nightmare for the SCO legal team, and the timing only compounded the problems.

If you look at when SCO filed its time request, it was filed on the morning of January 27, the cutoff day for discovery. It made it in the nick of time. If you read it, it goes on to say that people failed to show, and the dog ran away or something. It is, taken as a standalone document, a masterful work, a tear-jerker, but according to Intel, "unfair and untrue".

If you look at the Intel filing, you will see a direct and total contradiction of SCO's version of events, now on the record in Utah.

SCO went out on a limb, hoping and praying that no one would call it, set up everything so it could, should, and by all non-legal assessments, would be ignored. It was wrong, and now is caught with its pants around its ankles. That's one theory.

Oracle, Intel and TOG have all weighed in on the subject to one degree or another, and their descriptions of events directly contradict SCO's filing. SCO has to face the judge and do some awfully fancy footwork in explaining this. All three of the other parties have dated and untimely subpoenas with multiple other deficiencies to back their side of the case, so the SCO dance will likely be a bit frantic, and they have quickly filed a reply, although it's under seal.

We will know what happens soon enough -- the hearing on the subject is set for February 24, and it is sure to be a good one. µ